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tv   [untitled]    September 21, 2014 3:00am-3:31am PDT

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fact, of state law that's not a basis to didn't think the evasion permits and the argument she's making that utility cabinets at&t utility cabinets shouldn't be allowed in san francisco because the tag was denied by board of supervisors filing on the facts i ask the gentleman from at&t about this cabinet i could not say that but they say in the no an at&t cabinet because at&t didn't put locks on their cabinet given that no evidence has been prepared by appellant it would imcommodity access there's no denial for the permit i want to
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make remarks for the record dpws position that despite the fact they concede that the permit was properly granted under the older smf order they found it will not income mode the sidewalk but at&t is not in compliance with the new recollections the reality as of today dpw has not issued the new rules and regulations three weeks over the deadline the department remains in violation of ordinance i you don't think it's fair or legal to deny my clients permit because it hadn't followed the
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rules and regulations because it's not been recorded a few general points b about general activity it's true that generally speaking as a matter of law cities can pass now zoning ordinances while the permits are pending and retro actively apply the permits such as the one here this evening surprisingly there are exceptions to the rule i'd like to make two of them bring two of them to our considerations the first expectation is when there's a maurntd statutory time limit and the city acts within time limit and the time limit expires the
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city can't make a different decision those those time limits s are jurisdiction al and wednesday the meter runs the city can't pass no occurrences so again, we simply stand in the argument we've been making for months which is that 5885 means exactly what it says the city has 60 days to approve or deny permits it can't approve a permit on the tenth day and take the permit away particularly bans a retroactive application on the 80th or one hundred days in the case lay supports our position pretty strongly on that second expectation to the general rule whether or not the
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city can retro telegraph hill deny a permit if the city passes legislation that effects one city it is barred for the pending permits that the new legislation was passed that's because that kind of legislation is considered to be illegal description and a long line the of california cases back to the 30s the city of orange vs. valencia and sunset 59 one hundred 96 cal app those cases make that clear when a city passes laws that frustrating commercial development to a specific business that the city does not center the abatement to retro telegraph hill apply that
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legislation when on old ordinance was in effective the reality supervisor wiener made it clear this new legislation was being passed specifically to address his concerns about at&t and a permitting cabinets in the city it was passed specifically to impose a series of regulations the city can see that at&t's cabinet do in commodity the city because of the new legislation and a matter of law with the position is that at&t has a franchise with the state that allows it to use the right-of-way subject to the condition that the cabinet doesn't block the right-of-way the city can't retro telegraph
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hill apply the new permits on the new basis thank you for your consideration. >> mr. johnson on your retro activity argument it sounds like there's no precouncil court opinion have those cases been looked at. >> there's several opinions i can come up back an rebuttal and give you the site locations and. >> i have a question you piloted that the first cabinet is not app so regarding the other two pictures are those at&t cabinets. >> i don't know if i have ms. raising come in come up. >> we have one opinion on one cabinet we'll need another opinion on the second cabinet.
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>> good point. >> commissioners, i just know our boxes does not have paddle locks on them and it's hard to tell with the photo maybe you can help me or not it could be one of our boxes it could be more than likely one of our boxes but i can't tell exactly from that photo but it doesn't look like one of our boxes except we don't use locks. >> what's the policy regarding graffiti removal. >> so at&t has several graffiti
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removal so the first and foremost the city has an ordinance a policy regarding graffiti removal at&t has a bond on file with the city as part of the agreement with the city so that if we have graffiti on our equipment it sdpoot get removed by us the city b will remove it and charge us typical graffiti removal policy at at&t it's twenty-four hours if it's raining we take into account because we're not going to paint a cabinet if it's raining so we strive to do that within twenty-four hours we have a report that we have internally every month that tells us what our timelines are on those and whether or not we've met those and we also have the ability to
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work with 311 and if a customer didn't know if it's a at&t box and called 311 will they'll locate it based on the number on the box. >> so at&t was aware of this 8 days ago go. >> we can go out and paint a box today and tomorrow have more graffiti. >> it's hard for us to be able to look at those photos and knows whether or not those were taken 8 case on the grounds and it was reapplied by a graffiti artist. >> you're not answering the question. >> the question is any effort been made to clean up. >> you stated once at&t is
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aware of the graffiti's twenty-four hours it's generally removed in to those packages at&t was aware of this 8 days ago so specifically their addressed and let me add that the brief was filed days ago i've not seen those photos and i don't think we have an answer for you as to whether or not that graffiti has been removed this i don't know if that's an at&t cabinet. >> we may not have had the photos were you aware through the filing there was a problem with the box and graffiti on it? >> it's an honest question not a trick question. >> i'm not sure what answer to
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give you i'm aware that mrs. kneeing e yee claimed in her brief i have no reason to disbelief her, her hoemgsz home is tagged i don't remember on her brief whether or not she said there was an at&t cabinet in her neighborhood that was regularly tagged. >> do you have you read the brief. >> before this evening. >> before this meeting. >> i've read it in the last few weeks i don't remember that maybe i missed it. >> you're saying you don't have information there's been on effort to clean up 9 box in recent weeks let's say. >> we can get the report small
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business reports graffiti i'd like to asking asking have you ask her if she recorded it to 311 or an agency that notifies us there's graffiti on the box if not will until our technicians drive around that area we wouldn't know there's graffiti on the box. >> i'm asking if you have a record of it being cleaned up. >> we'll let you know if something has been cleaned up. >> that's what we need to know thank you, ms. short. >> good evening, commissioners carla department of public works the mapping i will try to be brief and focus on the couple of points it's true that the department buildings we properly
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issued this permit however, it is also true point department buildings that the appeal must be upheld because the permit was not final by the time the new ordinance took effect this afternoon the director signed the hearing decision and the new order we'll be real estate it first thing in the morning i wish we would have had it today but about 4:30 i got the notification the director signed it. >> since you brought that up what was the reason for the delay ms. short. >> thank you talk for asking the reason for the delay the shoppers office that sponsored the irrational legislation asked us to hold the hearing up for more public comment dpw was prepared we noted not belief to
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have the order that finalized right up against the 60 did day deadline business owner but within it and when the supervisor requested we give people more time we agreed to do it because they put the 60 day ordinance. >> sorry to interrupt. >> they said it was not pending in the ordinance and bans that the department feels that the board should uphold the appeal and the application we do agree that in order not to prejudice at&t that the one year prohibition does not apply, however, the retroactive does apply the ordinance requires that the board uphold the appeal
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and at&t file another permit to install that on, on that note i'll say while i think that supervisor wiener has made it clear his ordinance was addressing some of the concerns raised by many of the applications put forth by at&t the law was not designed to target one entity and many other entities are subject to the smf ordinances we've met with other services providers that have to install smf and are subject to the permit and given the draft dwp order i'll dispute the discertification that was designed to target one entity many concerns raised in particular about at&t surface
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mandatory facilities is the stipend to effect all applicants for surface mount facilities in public right of ways in san francisco. >> and lastly i'd like to read into the record our all the time statement it the board can't reduce to enforce 23 based it's preempted by state law at&t has agreed that must deny the permits to install smf's by granting those appeals the board will be denying at&t to install those types of cabinets and 901 and 5885 we believe this are argument is not before the board the board lacks the ordinance to refuse to enforce it we're
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citing all the ordinances and citations they're in our brief it appears that at&t's claim it preempts the board under the ordinance 76 dash 14 a preemption raises that constitutional issues based on the california constitution that a city and county may make a local is an terror not in conflict with the general laws if otherwise, it conflict with the state law it is void ordinance 76 dash 14 is a valid impacted ordinance the board could not review to enact the ordinance by state law i thought i would get that on the record
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because it will be used i'm available for questions. >> i don't think potentially. >> you sent a copy. >> i hoped to be armed but it got approved late. >> those appeals will not go away. >> hopefully, a constitutional process given. >> any public comment on that item? seeing none, ms. yee i have okay step forward. >> i'm i do not say the street i wanted to reiterate that see my neighbor is right we have a big problem with graffiti
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everyday we clean up so i don't know how me over see this we're getting fined if we don't clean up so the fact it is an at&t box is for sure it gets attention to the graffiti artists it's crazy they don't go there only but to the neighbors i think that we all like progress but why not put the box underground or use the old box because nobody uses landlines anymore they use cell phones so this is just i don't know. i he definitely it's at&t's an eye sore 40 for the neighborhood we don't like the attraction so it's very, very i don't know as i said everyday we have to clean up graffiti so
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they don't do it we do it him i don't know it's, you know, i take it is an eye sore we prefer it underground so i don't know why they can't do it they use a public lines for the sidewalks to make money why not help the neighborhood and put the box underground i don't know any neighbor will have a position we defer the graffiti artists to do anything so i just so if you can convince them to put it underground and the other problems will be resolved. >> thank you. >> all right. >> thank you is there any public comment? please step forward. >> hello my name is a pamela
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tom i'm the daughter of mrs. yee - >> i'm sorry. >> as a member of her family your time to speak is under the time she's allocated. >> i can't speak. >> she has rebuttal if she wishes you can speak under her rebuttal. >> stay right there are there others who wish to speak then we'll have 3 minutes of rebuttal. >> in the brief you got in july i took those pictures and picture no. 2 and 4 of the cabinet where you saw the pictures today so this cabinet on my picture it
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is cabinet 701. >> you can actually put that open the overhead. >> this is seven hundred 01 it shows it's on the first page i wanted to let you know he the cabinet didn't have. >> ms. please speak into the - and the cabinet doesn't have a paddle lock but a handle the picture i took i saw it on when i went to see my mom on sunday i said mom there's congregated think that thing again, i took a picture to show you in july after i filed the brief when i took the picture for the brief then in july when i came back there was graffiti he wanted to share. >> is it the same graffiti or
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cleaned up and new graffiti. >> it was cleaned up so inhabits one ab were july 28th tagged on the front and back this time with only yellow paint on the front i pout to point out to the enlargement tilts indeed an at&t box. >> thank you. >> okay. we having, take rebuttal from the permit holder mr. johnson. >> sorry so commissioner hurtado you asked me if in respect supreme court cases. >> i asked if the court of
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appeals cases you avoided that and i asked because they're not cited anywhere in the brief as an oral argument. >> i'm allowed to raise legal argument. >> i'm allowed to hear them but answer my question. >> off the top of my head i--i don't know if there's a cal decision i don't know if someone filed a written petition and the 13rush8g9 weighed it and you were going to say something about the cal supreme court case and there are cal destruct cases i'll be happy to give you the
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citations. >> i don't have time to read them i'll note you're filing the same brief over and over again that's not helpful if you want us to consider the authority i suggest you put it in your brief that's my suggestion i'm happy to hear about the cal supreme court case. >> the discipline is an exception and if cities pass legislation that target developers to frustrate development the cities can't apply the new legislation to the permits because the fact pattern in most of the cases the city will grant the developer or a homeowner a permit there will be complaints from other parties
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and the city council will hold an emergency meeting and pass new legislation and take the permit away on that basis the courts said p when you have that kind of fact pattern this amazes to illegal discrimination and in some situations the courts said you can't retro tiflg apply a new ordinance to take away permits you've grand that is essentially what's happening here. >> it's different from a corporation and a public like at&t. >> the distinction that the court makes. >> it's a constitutional right. >> the court don't frame this as a constitutional right they do frame it as illegal discrimination but i've never
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seen a court rely on california due process principles to reach this conclusion they don't actually give any rational beyond as trainer gave wee when he is on the case. >> an old case. >> it is the case that people cites. >> it's still good law. >> yes. >> i don't maple to be difficult i don't feel it is properly briefed it may or may not be the proper forum by i'll interested in the ultimate
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information. >> i'll be happy to provide more briefing this is helpful in not i'll certainly provide additional briefing for the next brief we file. >> i'm not the you will. >> do you want to continue the rebuttal? >> i have nothing further to add. >> thank you ms. short. >> thank you, carl la department of public works i should certainly shatter with the disclaimer i'm not an attorney but the argument by mr. johnson is not equivalent it seems to involve legislation specifications to the one developer and if we agree it is
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the same as the legislation that effects anyone that's interested in installing an smf in san francisco i have a hard time understanding how that would create this expectation to the retro activity clause in my mind this is not an equivalent case we strongly feel the ordinance requires you uphold the appeal in this case. >> thank you, mr. short i'll inquire whether or not the city attorney has anything to add on the retro activity. >> i think my comment is brief which is to say this is not a forum to deciding the legality the board must follow the legislation and mr. johnson is
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aware the court will decide the legality. >> pursuant to our charter and the constitution. >> okay. thank you thank you. >> commissioners the matter is submitted. >> well, i think it's for the sake of consistency whether or not ms. yee specific concerns would be a basis to strike this permit under the old or new ordinance the way i see it for the sake of inconsistencycy and the dpws brief we don't have a choice but to grant the appeal based on the rro